Trial opens for Sgt. Robert Bales in Afghanistan killings

For seven months, Joint Base Lewis-McChord Staff Sgt. Robert Bales sat in confinement while the military stayed all but silent about its case against the four-time combat veteran accused of murdering 16 Afghan civilians in a nighttime rampage.

That silence is about to end as the Army on Monday opens its first public hearing in a courtroom drama that could lead to a death penalty court-martial for Bales, a father of two and former Lake Tapps resident.

The hearing will be the first opportunity for Bales’ friends and family to learn what happened the night of March 11. The Stryker soldier allegedly twice slipped out of his combat outpost to kill nine children and seven adults in two separate villages.

The 39-year soldier had a reputation as a solid noncommissioned officer during a military career spent entirely at Lewis-McChord. He served with the 3rd Brigade, 2nd Infantry Division on all three of its tours to Iraq and the start of its one trip to Afghanistan.

“Nobody knows what’s going to come up,” said Elmer Clark, who has helped the Bales family as president of Tacoma’s VFW chapter, to which Bales belonged. “We still support the family.”

Bales’ alleged crimes upended NATO’s war plan in southern Afghanistan, halted combat operations for several days and raised concerns at home about the well-being of the military 11 years into an era of continual ground combat by an all-volunteer Army.

Military authorities whisked him out of Afghanistan shortly after the March killings and placed him in jail at Fort Leavenworth, Kan. He arrived at Lewis-McChord in October.

Bales’ family spokesman said the soldier is better off now that he’s back in the Northwest. His wife, Karilyn, has been able to visit multiple times at Lewis-McChord’s Regional Confinement Center.

“She’s very pleased that he’s close to her and the kids by being at the base and that they can visit more easily and frequently,” said family spokesman Lance Rosen, a Seattle attorney.

Now the family wants to see the staff sergeant get a fair shake in court.

“He’s an American citizen. He’s a soldier. He deserves a fair trial,” Rosen said.

Bales’ case begins this week with a pretrial hearing where the Army presents all its evidence. Bales’ defense attorney can test it, and an Army judicial officer recommends whether the case should advance to a full court-martial.

Veteran military attorneys say this phase of the trial is an opportunity for the defense to draw out inconsistencies among witnesses. Prosecutors, by contrast, want to protect Army evidence and reveal as little as they can about their strategy for a trial.

“This probably is the single best thing about the military justice system,” said Colby Vokey, a retired Marine prosecutor and defense attorney who now represents military clients as a civilian. “First and foremost, you are committing people on the record in sworn testimony to their version of the events.”

The hearing will unfold in the spotlight of the national media, and it will take place with a rare group of witnesses: Afghan civilians testifying from a military base in a combat zone.

John Henry Browne, Bales’ lead defense attorney, is traveling to Kandahar to cross examine those witnesses. The Seattle attorney said he does not know who the Army is calling to testify. He said the Army took the initiative to get the Afghan witnesses in court. Browne does not have the authority to call his own witnesses during this pretrial phase.

Experienced military defense attorneys say it’s unusual for the Army to provide foreign civilian witnesses at an American judicial hearing. No Afghans testified in the last major war crimes case at Lewis-McChord – the 2010-11 Stryker “kill team” cases – except for ones on the U.S. payroll as interpreters.

“This is a huge risk for the prosecution, and it seems clear the reason they’re doing that is to show the world and the Afghans the American system, and there’s nothing wrong with that,” said Dan Conway, a former Marine and experienced military defense attorney who represented one of the soldiers in the “kill team” cases.

Here are five questions that may prove critical as Bales’ pre-trial hearing unfolds over the next two weeks:

1) What happened on the night of the killings, and what was Bales’ state of mind?

The murders in Kandahar’s Panjwai District cannot be called a “fog of war” situation in which innocents are killed because of battlefield confusion.But witnesses might be able to give a fuller picture of the stresses and threats Bales faced at Combat Outpost Belambay. He was supporting Special Operation Forces while living near civilian villages in the Panjwai district of Southern Afghanistan.

Last spring, Browne described a variety of conditions that could have influenced Bales’ behavior during his last deployment. Bales previously had suffered a head injury and possibly dealt with post-traumatic stress, for example.

His behavior also could have been altered by an anti-malaria drug soldiers often take. The Army accuses him of using steroids and drinking alcohol in Kandahar – two substances that can impact a person’s mood.

Defense attorneys say Browne can use the upcoming hearing to argue that Bales’ did not have control over his own actions on the night of the killings. That defense has been used in the past to limit punishment against soldiers convicted of crimes committed in war zones.

“If he had PTSD and one of the symptoms was he’s having delusions about what’s going on, then it can certainly be a defense,” Vokey said.

2) How will the Afghan testimony play out?

Afghans testifying from Kandahar Air Field could appear in court at Lewis-McChord through a live video feed with their faces obscured to protect their identities. Attorneys, reporters and the Army judicial officer overseeing the case likely will notice delays for interpreters and possible inconsistencies in translations.

So far, some witnesses to the Panjwai killings have told international media they saw multiple soldiers that night.

“It was not one person who did this. Other U.S forces were guarding outside our homes during the shooting,” one man who identified himself as a relative to the victims told Iran’s state-run Press TV in April.

Similar accounts have appeared in news stories by other organizations, but the multiple-soldier description has been rejected by official Afghan and Army investigators.

The confusion could play to the advantage of Bales’ defense team.

Vokey thinks the Army wants to obtain powerful testimony it can use at a court-martial if the Afghans are unavailable to travel to U.S. soil for the final part of Bales’ trial. In that case, Vokey says Bales’ defense team would try to bar the Afghan testimony from being submitted at the soldier’s court-martial based on Bales’ 6th Amendment right to confront witnesses against him in court.

Vokey has rarely seen Iraqi or Afghan witnesses appear at courts-martial.

Foreign witnesses “only become available when the government really, really, really wants them,” he said.

Conway sees a major opportunity for Bales’ team in speaking with the Afghans.

“You’re going to have witnesses who A) have credibility issues, and B) there are going to be language barriers that are going to create inconsistencies.

Potential credibility problems for an Afghan testifying in an American court-martial include a possible bias against American forces or a relationship with the U.S. government.

For instance, families of the massacre victims reportedly received $50,000 payments from the U.S. government, a financial relationship that could compromise their testimony in court.

3) Will Bales face the death penalty?

Recent history suggests the Army will not pursue capital punishment for crimes committed against foreign nationals in a war zone.

Today, six service members are on death row at Fort Leavenworth. All were convicted of killing other Americans.

By contrast, two soldiers convicted of notorious war crimes in Iraq and Afghanistan received life sentences.

One, former Pfc. Steven Dale Green, received a life sentence without parole for raping and killing a 14-year-old Iraqi girl, then leading a group of soldiers in killing her family in 2006.

The other was former Staff Sgt. Calvin Gibbs of Lewis-McChord’s 5th Brigade, 2nd Infantry Division. He received a life sentence with an opportunity for parole last year when he was convicted of orchestrating the murders of three Afghan civilians in the Stryker “kill team” cases.

The military jury in that case did not believe Gibbs when he testified that the killings took place in combat, or sympathize with him when he said he had dehumanized Afghans in the war zone.

Bales’ prosecutors might return to their “kill team” playbook when they try Bales.

Gibbs “betrayed his oath. He betrayed his unit. And, with the flag of his nation blazoned across his chest thousands of miles from home, he betrayed his nation,” Maj. Robert Stelle said at Gibbs’ court-martial. Stelle is part of the Army’s prosecution team on the Bales case.

4) How did the Army gather evidence against Bales?

Browne has complained that the Army has been slow to provide physical evidence. He’ll have opportunities to question Army investigators over the next two weeks, raising questions about their work in a hostile part of Afghanistan and cross-examining them about their discussions with Bales.

He might be able to probe weaknesses in the government’s case that the defense could then use when and if Bales’ case appears before an Army judge at a court-martial.

“It’s tough to beat the house in these cases that are political, and this case is without question a political case.” Conway said. “Still, the (pretrial hearing) is a great chance for the defense to strike a blow.”

5) Will the lack of military experience among Bales’ lead defense attorneys help or hurt his case?

Bales opted to hire Browne, a high-profile civilian lawyer from Seattle, rather than seek a defense attorney with more extensive experience working in the military justice system.

Browne brings certain advantages, such as a media-savvy personality that can shape perceptions about Bales and extensive experience defending clients in cases that attracted national attention. He also has experience in homicide cases where the death penalty was on the line.

However, he does not have much experience in military courtrooms, a cultural difference that became evident in April when emails between Browne and Bales’ first military-appointed defense counsel were published by the Reuters news agency. The emails show Browne firing the well-regarded Army defense attorney over a rift in strategy.

Browne also does not have a security clearance, meaning he cannot view classified information. There could be significant classified information in this case because Bales was operating out of a Special Forces outpost when the massacre took place, and the Army could seek to shield secret surveillance tactics.

Browne can rely on members of his team, including a military-appointed defense attorney, who will be able to review the classified evidence.

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